COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judge Elder and 

 Senior Judge Overton 

Argued at Alexandria, Virginia 

DARROW EUGENE HERBERT 

 MEMORANDUM OPINION* BY 

v. Record No. 0888-00-4 JUDGE LARRY G. ELDER 

 APRIL 10, 2001 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 

Frank A. Hoss, Jr., Judge 

 Michael F. Devine (James C. Love, IV; 

Devine & Connell, on briefs), for appellant. 

 Stephen R. McCullough, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.

 Darrow Eugene Herbert (appellant) was convicted in a jury 

trial for attempted capital murder of a police officer, use of a 

firearm in the commission of attempted capital murder, and 

possession of a firearm by a convicted felon. On appeal, he 

contends the trial court committed reversible error in the guilt 

phase of the trial by erroneously instructing the jury on the 

elements of attempted capital murder, necessitating reversal of 

that conviction and his conviction for the concomitant use of a 

firearm. He also contends the trial court erred in the 

sentencing phase of the trial by erroneously instructing the 
jury, in response to its specific question regarding whether 

appellant would be eligible for parole, that the jury should 

"not []concern [itself] with what may happen after[]" 

sentencing. 

 We hold that the omission of material elements of the 

offense from the attempted capital murder instruction was error 

which was not harmless. We also hold that the trial court's 

failure in the sentencing phase to instruct the jury on the 

status of parole constituted reversible error. Therefore, we 

reverse appellant's convictions for attempted capital murder and 

the concomitant use of a firearm and remand for a new trial on 

those offenses. We also vacate appellant's sentence on the 

felon-in-possession conviction and remand for resentencing on 

that offense. 

I. 

A. 

CAPITAL MURDER INSTRUCTION 

 Rule 5A:18 provides that no ruling of the trial court shall 

be reversed on appeal unless the party's objection to the ruling 

"was stated together with the grounds therefor at the time of 

the ruling, except for good cause shown or to enable the Court 

of Appeals to attain the ends of justice." "[T]he ends of 

justice exception is narrow and is to be used sparingly." Brown 

v. Commonwealth, 8 Va. App. 126, 132, 380 S.E.2d 8, 11 (1989). 

However, 

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"[W]hen a principle of law is vital to a 

defendant in a criminal case, a trial court 

has an affirmative duty properly to instruct 

a jury about the matter[,]" . . . even when 

"trial counsel neglected to object to the 

instruction.'" Obviously, the proper 

description of the elements of the offenses 

is vital to a defendant. Attaining the 

"ends of justice" requires correction of an 

instruction which allows a jury to convict a 

defendant without proof of an element of a 

crime. 

Campbell v. Commonwealth, 14 Va. App. 988, 991-92, 421 S.E.2d 

652, 654 (1992) (en banc) (quoting Jimenez v. Commonwealth, 241 

Va. 244, 248, 250, 402 S.E.2d 678, 679, 681 (1991)). 

 Here, appellant concedes he failed to object 

contemporaneously to the trial court's alleged omission from the 

instructions of two elements, (1) the existence of specific 

intent to commit capital murder and (2) the commission of an 

overt act toward that murder. However, he contends the trial 

court had an affirmative duty to instruct on these principles 

because they were elements of the crime and, as such, were vital 

to his defense.1 Thus the issue of preservation for appeal is 

 1

 Appellant also assigns error to the confusing nature of 

Instruction three in general and to the trial court's failure to 

give instructions defining the terms "attempted" and "willful, 

deliberate and premeditated." Appellant proffered no 

instructions defining these terms and posed no contemporaneous 

objection to the trial court's failure to instruct the jury on 

their meaning. Insofar as these claimed errors relate to the 

definitions of included terms and elements rather than the 

omission of essential elements from the finding instructions, 

the ends of justice exception does not apply and Rule 5A:18 bars 

our consideration of these issues on appeal. But see Goodson v. 

Commonwealth, 22 Va. App. 61, 77, 467 S.E.2d 848, 856 (1996) 

(holding that failure to define "attempt" as requiring proof of 

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inextricably linked with our consideration of the merits. If 

the existence of specific intent and commission of an overt act 

were elements of the crime of attempted capital murder and the 

court failed properly to instruct the jury on them, this failure 

constituted error reviewable on appeal regardless of whether 

appellant contemporaneously objected to the failure. 

 A conviction for attempted capital murder requires proof of 

a specific intent to commit that offense. See Goodson v. 

Commonwealth, 22 Va. App. 61, 72-75, 467 S.E.2d 848, 854-55 

(1996). Instruction three, the attempted capital murder finding 

instruction, did not use the term, "specific intent." It 

required proof only that the attempted killing was willful, 

deliberate and premeditated. We hold the language of 

Instruction six defining "[w]illful, deliberate and 

premeditated" as "a specific intent to kill" is insufficient to 

compensate for the absence of intent language from Instruction 

three. Further, the specific intent to kill referenced in 

Instruction six is not the same as a specific intent to commit 

capital murder, the element omitted from Instruction three. 

Proof that appellant had the specific intent to commit capital 

murder required findings that the person he intended to kill was 

a law enforcement officer and that his intent existed for the 

 

a specific intent and an overt act amounts to a failure to 

instruct on the essential elements of an offense, a non-waivable 

error). 

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purpose of interfering with the officer's official duties. See

Code § 18.2-31(6). Thus, we hold the instructions did not 

sufficiently apprise the jury of the specific intent element of 

the offense of capital murder. 

 We conclude that omission of the "overt act" element of the 

offense of attempted capital murder also constituted error, as 

the Commonwealth concedes. We addressed this issue in Goodson, 

22 Va. App. at 77, 467 S.E.2d at 856, in which we held that an 

instruction requiring proof merely that the defendant "attempted 

to kill [victim]" failed properly to apprise the jury of the 

essential elements of the offense because it did not require 

proof of "'an overt but ineffectual act . . . in furtherance of 

the criminal purpose.'" Id. (quoting Martin v. Commonwealth, 13 

Va. App. 524, 527, 414 S.E.2d 401, 402 (1992) (en banc)). Thus, 

here, as in Goodson, the court's failure to instruct on the 

elements of an "attempt" constituted error. In addition, 

because the error resulted from a failure to instruct on the 

essential elements of the offense, appellant's failure to object 

or proffer a proper instruction at trial does not bar our 

consideration of this issue on appeal. See Campbell, 14 Va. 

App. at 991-92, 421 S.E.2d at 654; see also Jimenez, 241 Va. at 

251, 402 S.E.2d at 681. 

 We also hold that these deficiencies in Instruction three 

were not harmless. 

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 "'The Constitution gives a criminal defendant the right to 

have a jury determine, beyond a reasonable doubt, his guilt of 

every element of the crime with which he is charged.'" Allard 

v. Commonwealth, 24 Va. App. 57, 65, 480 S.E.2d 139, 143 (1997) 

(quoting United States v. Gaudin, 515 U.S. 506, 522-23, 115 

S. Ct. 2310, 2320, 132 L. Ed. 2d 444 (1995)). However, an error 

in instructing the jury does not require reversal if the error 

was harmless. Kil v. Commonwealth, 12 Va. App. 802, 812, 407 

S.E.2d 674, 679-80 (1991). Thus, as with all forms of 

constitutional error, "'[w]here a reviewing court can find that 

the record developed at trial establishes guilt beyond a 

reasonable doubt, the interest in fairness has been satisfied 

and the judgment should be affirmed.'" Id. at 812, 407 S.E.2d 

at 680 (quoting Rose v. Clark, 478 U.S. 570, 579, 106 S. Ct. 

3101, 3106, 92 L. Ed. 2d 460 (1986)). 

 Constitutional error does not affect a verdict and, 

therefore, is harmless beyond a reasonable doubt "if a reviewing 

court can conclude, without usurping the jury's fact finding 

function, that, had the error not occurred, the verdict would 

have been the same." Lavinder v. Commonwealth, 12 Va. App. 

1003, 1005, 407 S.E.2d 910, 911 (1991) (en banc). Where an 

instruction omits an essential element of an offense and no 

evidence is introduced to prove that element, the error is not 

harmless. Jimenez, 241 Va. at 251, 402 S.E.2d at 681 

(characterizing defendant's conviction under these circumstances 

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as one for "a non-offense"); Kil, 12 Va. App. at 812, 407 S.E.2d 

at 680. Similarly, where the evidence on the omitted element is 

disputed and the record does not indicate whether or how the 

jury resolved the dispute, the error also is not harmless. 

Eubanks v. Commonwealth, 18 Va. App. 537, 541-42, 445 S.E.2d 

706, 708-09 (1994). 

 We are unable to conclude the errors in this case were 

harmless beyond a reasonable doubt because the evidence on the 

omitted elements was disputed, and we cannot say the jury 

resolved these disputes in the Commonwealth's favor. Appellant 

claimed he did not intend to harm Lieutenant Bamford, that he 

displayed his weapon only for the purpose of discarding it, and 

that he did so before he even saw Bamford approaching. Bamford, 

by contrast, said appellant engaged in furtive and evasive 

behavior, reaching into his waistband and attempting to hide 

behind a lamp post, after the face-to-face encounter began. 

Bamford said the encounter culminated in appellant's "going for 

[his] gun," which prompted Bamford to draw his own weapon and 

fire. 

 The Commonwealth claims appellant's conviction for the 

related offense of using a firearm in the commission of 

attempted capital murder indicates the jury resolved these 

evidentiary disputes against appellant, rendering the errors in 

the attempted capital murder instruction harmless. However, we 

find it just as likely that the deficiencies in the attempted 

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capital murder instruction similarly infected the verdict on the 

concomitant firearm offense. Due to the deficiencies in the 

attempted capital murder instruction, the jury could have found 

appellant guilty of that offense without making findings on the 

missing elements and then convicted appellant of the related 

firearm charge simply because he displayed a weapon during the 

commission of the underlying non-offense. Thus, we cannot 

conclude beyond a reasonable doubt that the errors in 

Instruction three were harmless. 

 For these reasons, we reverse appellant's convictions for 

attempted capital murder and the concomitant use of a firearm 

and remand for a new trial if the Commonwealth be so advised. 

B. 

PAROLE QUESTION AND RESULTING INSTRUCTION 

 Appellant concedes he posed no contemporaneous objection to 

the trial court's response to the jury's question on parole 

eligibility but contends nevertheless that this issue is 

properly before us on appeal and requires a remand for 

resentencing. The Commonwealth concedes that the holdings in 

Fishback v. Commonwealth, 260 Va. 104, 532 S.E.2d 629 (2000), 

and Jerman v. Commonwealth, 34 Va. App. 323, 541 S.E.2d 307 

(2001), dictate this result, and we agree. 

 The decision in Fishback provides that a jury's knowledge 

of the abolition of parole is materially vital to a defendant at 

least in those cases in which the jury specifically inquires 

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about its impact. Jerman, 34 Va. App. at 326-28, 541 S.E.2d at 

308-09. When a jury inquires about parole, the trial court has 

an affirmative duty to instruct the jury on the status of the 

law in Virginia as it applies to that specific defendant, and 

its failure to do so is error. Id. Thus, appellant's failure 

to proffer an instruction on the subject or to object to the 

court's deficient response does not prevent our consideration of 

the issue on appeal, and we vacate the jury's sentence and 

remand for resentencing in accordance with Fishback. 

II. 

 For these reasons, we reverse appellant's convictions for 

attempted capital murder and the concomitant use of a firearm 

and remand for a new trial if the Commonwealth be so advised. 

We affirm the conviction for the offense of possessing a firearm 

after having been convicted of a felony, vacate the sentence, 

and remand for resentencing on that offense. 

 Affirmed in part,

reversed in part

and remanded.

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